What Medical Evidence Does a Claim Against MVIL Need?

Damages follow the medical evidence. A claimant with good records and a doctor willing to swear an affidavit is in a strong position; a claimant with a report of uncertain origin and no records of the original treatment may recover nothing.

Records of the first treatment

The courts want to see what was found when the claimant first reached a health centre or hospital, because that ties the injury to the accident. In Moip v MVIT [1993] PGLawRp 558; [1993] PNGLR 485, with “no police accident report and no contemporaneous medical reports”, the claim was dismissed. In Danga v MVIT [1997] PGNC 160; N1665 a claim for a fractured hand failed for want of proof of the material facts. In David v MVIT [1993] PGLawRp 535; [1993] PNGLR 356 the court accepted the initial injury but held that the plaintiff, having pleaded worse consequences, “had an obligation to accord the court more medical evidence, especially that available from the initial examination and treatment”. A later report can be enough where it plainly connects to the accident, as in Koli v MVIT [1997] PGNC 188; [1997] PNGLR 343, but the first records are the safest foundation.

The doctor’s report

The standard report in the cases states the injuries, the treatment, the period in hospital, the residual symptoms and a percentage loss of efficient use of the affected part. Judges use that percentage to place the case among the comparables: 20 per cent disability of the back, 5 per cent for scalp keloids (Dinogo); 40 per cent of the shoulder, arm and hand (Takura); 95 per cent of the foot (Kupo). Where specialists are unavailable, an experienced general practitioner may give the assessment: in Koka v MVIT [1994] PGLawRp 671; [1995] PNGLR 344 a general practitioner with long experience of rural people was allowed to assess the behavioural effects of a head injury in the absence of a psychiatrist. But a claim of total mental incapacity needs more: in Wai v MVIL [2006] PGNC 193; N2974 the medical evidence for 100 per cent impairment was “unreliable and insufficient” without an independent psychiatric assessment, and the court found 50 per cent.

Hearsay: the doctor must swear to it

In Ken a father’s claim for the death of his five-year-old son was dismissed entirely because the trial judge had admitted hearsay medical and police documents. The National Court had already been moving this way: in John v MVIL [2022] PGNC 400; N9973 the court said the treating doctor “would have been the proper deponent” and that reliance on the lawyer as primary witness “is futile”. Section 37 of the Evidence Act provides the mechanism for a medical practitioner’s report to be received in evidence, and the site’s article on the Evidence Act discusses the statute; the Act itself is not on PacLII.

Some judges, exercising the discretion in section 37(2), have admitted reports tendered otherwise than by their authors but given them less weight. In Pioro v MVIL [2022] PGNC 235; N9667 reports admitted “contrary to Section 37” were given less rather than no weight because photographs and clinical notes supported them; Waso v MVIL [2021] PGNC 623; N9664 did the same. After Ken, which is a Supreme Court decision, a claimant should not count on that indulgence.

Getting it right

1. Obtain the hospital or health centre records from the day of the accident, and the discharge summary.
2. Obtain a report from the treating doctor, or a specialist, stating diagnosis, treatment, prognosis and percentage disability, with X-ray references.
3. Have the doctor swear an affidavit annexing the report. Do the same with the police officer and the accident report.
4. If the doctor is unavailable, seek MVIL’s written consent to the report’s admission, or call another doctor who has examined the claimant.
5. Keep photographs of scarring and deformity; Pioro shows their value.

Late reports and reopening

A medical report that arrives after the evidence has closed may be admitted if the court allows the case to be reopened. Tunboro v MVIT [1984] PGLawRp 452; [1984] PNGLR 272 lists the considerations: whether the evidence would probably affect the result; whether it could have been obtained with reasonable diligence; whether it is merely confirmatory; whether it was omitted by inadvertence or deliberate choice; and the interests of justice. In Yalao v MVIT [1996] PGLawRp 769; [1997] PNGLR 441 material not formally tendered through counsel’s inadvertence was admitted “in the interest of justice and fairness”. These are discretions, not entitlements.